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Attending to Mediation Attendance

Just Court ADR, January 27th, 2012

January seems to be a popular month for birthdays among my friends, with six celebrations in three weekends.  Mostly, my husband and I have been able to attend together. But when the parties overlapped this past weekend, he went to one party and I to another. Though I called the other party to wish my friend a happy birthday, the call was no substitute for actually attending the party.

The conundrum of party attendance has me thinking about attendance in mediation. Some recent developments have revived the issue of what constitutes attendance, and who should attend. General consensus among neutrals, it seems, is that whenever possible, both parties in a dispute should attend mediation in person.

Florida seems to agree. Effective January 1, 2012, Florida’s mediation procedures were amended to require in-person mediation attendance by a “final decision maker” with “full authority to settle without further consultation.” This person is a representative other than the party’s attorney. Moreover, if the case involves an insurer, the amendment requires physical attendance by a “representative of the insurance carrier for any insured party who is not such carrier’s outside counsel and who has full authority to settle in an amount up to the amount of the plaintiff’s last demand or policy limits, whichever is less, without further consultation.” The court must know the identity of these representatives at least ten days before mediation. It’s like RSVPing for a party and being required to attend, regardless of how cumbersome it might be to do so.

Though not quite the same as appearing in person, telephonic attendance is permitted in a variety of cases, and is especially popular when parties are large corporations, like banks, whose representatives are geographically far away from the court case. The telephone is convenient, especially if the mediation is in a private office (some courts do not have telephones available for mediators to use). And the telephone ensures an important party can participate in the conversation without adding travel costs to the case. This is helpful for both corporations and low-income people who live in areas that make travel to courthouses difficult. Like my friend whose birthday party I had to miss, parties can still feel validated even if the other person is on the phone.

Some neutrals believe that telephonic attendance creates a sense of distance from the problem in the mind of the telephonic participant. A mediator may have a harder time reflecting back a telephonic participant’s emotions, since the mediator cannot see gestures or hear minor inflections in the voice. Without that kind of engagement, the mediator may find it difficult questioning the party’s present reality and use their sense of reality to help reach settlement. The distance may also further entrench a party’s sense of the inequality in bargaining power; if one party was allowed not to be physically present in the room, the physically present party may feel put upon or less important that the party who was able to opt-out. This may denigrate trust between the parties and make settlement even more challenging.

If the telephone is being used less, and in-person attendance with full authority to settle is being required more, how will attendance be defined when courts start following the international trend and use online mechanisms (chat rooms, video conferencing, texting, etc.) to mediate? I certainly don’t want to toast a friend’s birthday over the Internet, but maybe I wouldn’t mind if a court allowed me to settle my dispute that way.

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